A widely criticized, and recently substituted, bill to retroactively change court rules and force a judge to reconsider a block on the state’s abortion ban passed the Utah Senate on Friday. The substitute legislation, which narrowed the bills scope, passed its final vote along party lines after initially failing to meet a constitutional two-thirds requirement.
Its success came after Sen. Dan McCay, R-Riverton, who is the Senate sponsor for Joint Resolution Amending Rules of Civil Procedure on Injunctions, or House Joint Resolution 2, proposed a substitute that would take a more targeted approach to injunctions delaying laws passed by the Legislature.
“The substitute introduced ... took the opposing parties to neutral, which certainly helps the bill for lots of reasons,” McCay said during floor time on Friday.
The bill’s author, Rep. Brady Brammer, R-Pleasant Grove, said he asked for the change and supports it.
McCay wrote Utah’s abortion trigger ban, which has been on hold since June when a district court judge issued a temporary restraining order and later granted a preliminary injunction in Planned Parenthood Association of Utah’s lawsuit challenging the law.
Although “the trigger law was also a trigger to this,” Brammer has said, the joint resolution is aimed at stopping Utah’s courts from enjoining “controversial” laws soon after they are passed by the Legislature.
In its initial vote on Friday, two Republicans — Sen. Keith Grover, R-Provo, and Sen. Wayne Harper, R-Taylorsville — joined Democrats in opposition, and Senate President Stuart Adams, R-Layton, was absent from the Senate floor.
Sen. Todd Weiler, R-Woods Cross, motioned for senators to reconsider the vote, and Adams added his affirmation as Grover and Harper switched sides. The bill now returns to the House for the new version to be approved before going into effect.
Under the Utah Constitution, amending court rules requires the approval of two-thirds of both legislative bodies, and does not require the governor’s signature.
While McCay’s substitute alters the bill’s text in a few places, the most notable additions are that an injunction eligible for review must be “restraining or enjoining the enforcement of a law,” and “explicitly states that the court granted the order or injunction on the ground that the case presented serious issues on the merits which should be the subject of further litigation.”
Third District Court Judge Andrew Stone’s order granting the preliminary injunction on the abortion trigger law uses that language, so under the joint resolution, the Utah Attorney General’s office could request the courts reevaluate the delay of the law under the new rules.
It’s unclear whether the Attorney General’s office will immediately ask the courts to reconsider the block on the bill. The Utah Supreme Court is currently considering the office’s interlocutory appeal, or appeal on the injunction.
McCay’s substitute comes after opposition from attorneys who worry the unmodified bill might impact their practice, and a public showdown over the joint resolution between Brammer and the Utah State Bar.
“This was requested by the (Utah State Bar) after it passed the second reading in the (S)enate and I was happy to accommodate even though the bill would have passed without the change,” Brammer wrote in a text to The Salt Lake Tribune.
The organization that governs Utah’s lawyers previously took a stance against the bill in a memo to its commission and lobbyists, obtained and published by The Tribune. That memo primarily outlined the Utah State Bar’s opposition to the joint resolution’s retroactivity clause, and how it might impact cases in multiple areas of the law.
Under the substitute, the bar has switched to a neutral position on the bill, according to Nancy Sylvester, the bar’s general counsel.
“Limiting the retroactive application of the legislation to injunctions of laws passed by the Utah Legislature seems to be in keeping with the Legislative branch’s interests,” Sylvester wrote in an email. “We appreciate Representative Brammer’s willingness to consider our commissioner’s suggestion and to provide the Bar this opportunity to voice our earlier concerns.”
At a Senate Judiciary, Law Enforcement and Criminal Justice Committee meeting on Jan. 28, Brammer accused the bar of pulling a ”political stunt” with its memo and an email it later sent to bar members.
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Brammer’s response to the bar’s memo, which he shared with The Tribune, asked for examples of cases the legislation might affect. The bar then encouraged members in a mass email to “send examples of injunctions that will need to be revisited or could be undone if HJR2 passes.”
Utah’s is a mandatory bar, meaning all lawyers practicing in Utah — including Brammer — are members.
During public comment on the bill, Utah State Bar Commissioner Mark Morris said the memo had nothing to do with the lawsuit against the trigger law, and added, “If this change is truly only targeting two or three things, ... it should say so, and I would suggest it’s not fair to say to the bar, show me the 1,000 or 100 orders that this might affect.”
Although it hasn’t taken a position on the bill, a representative for Utah Courts has attended both House and Senate committee meetings to voice concerns about the joint resolution’s implications — specifically its retroactivity.
Michael Drechsel, an assistant administrator for Utah Courts, told The Tribune through a spokesperson Wednesday that the courts hadn’t yet had a chance to review the substitute to take a position on it, but that it will likely maintain its “no position” stance. That stance, he said in a committee meeting, is in part because of how it might impact ongoing litigation in multiple cases.
“It is good to see Rep. Brammer continue to make an effort to narrow the scope of the joint resolution’s retroactive effect on previously decided cases,” Drechsel added.
In comments offered during the Jan. 28 Senate Judiciary, Law Enforcement and Criminal Justice Committee, Drechsel responded to statements from Brammer and others that he perceived as suggesting that “judges (are) perhaps being cavalier about the decision making.”
“To the extent that Rep. Brammer indicated that some of the decisions you make as legislators keep you up at night, the same decision-making keeps those judges up at night, and they’re sincere in their desire to try and allow people to litigate their claims in court,” Drechsel said.
Correction • This story has been updated to reflect the bill’s passage in the Utah Senate.
